For
legal rules to have any effect, someone has to enforce them, usually by making
violation costly. This raises an obvious, indeed proverbial, problem: Who is to
enforce rules upon the enforcers, and how? It is a particularly serious problem
given that the powers used to enforce rules may also be used for other, and
possibly less desirable, purposes—extortion, intimidation of political
opponents, facilitating the commitment of ordinary crimes such as robbery. It
is a problem brought home by recent news stories, such as the account of the NY
city police union demonstrating against trials of officers caught fixing
traffic tickets—and arguing that the right to fix tickets is a perquisite
of their job,[2] or
reports of policemen planting drugs on people in order to fulfill their quota
of drug arrests.[3]
How has that problem been dealt with in different legal systems?

The
simplest solution is not to have any specialized enforcers. Consider, for one
example, a system of social norms. What prevents me from teaching classes
stripped to the waist is not the fear of being arrested but the expectation
that doing so would lower my reputation, social and professional, changing the
behavior of people with whom I interact, and by doing so making me worse off.
Norms are potentially enforced against me by everyone I interact with, and by
me against everyone I interact with. That describes not only the social norms I
face but the norms of neighborly behavior in Shasta County, California, as
described by Robert Ellickson in Order Without
Law, enforced by both legal and (mildly) illegal acts of neighbors against norm-violating
neighbors.

Another
example of a type of legal system without specialized enforcers is a feud
system, such as traditional Somali law or the legal system of saga period
Iceland. The rules are enforced by the threat of the private use of
force—by anyone, against anyone. Individuals vary in their ability to use
force, some being more formidable or having more allies than others. But nobody
has any special set of rights or special legal status associated with the job
of enforcing rules, and anyone who uses his particular advantages to try to
abuse the system risks bringing into existence a stronger coalition to block
him.

For
a third and final example, consider England in the 18th century, a
society with modern criminal law but no police. Constables had a special legal
status, being needed for the procedure that led to a trial [check on the
details of this], but no real power. Since any Englishman could prosecute any
case, the fact that an offense was approved of by the authorities was no
guarantee that it would not be prosecuted.

A
different solution to the problem, observed invariety of forms, is a second layer of
enforcement charged with the duty of enforcing rules on the enforcers. The
version familiar in the modern U.S. is a civilian review board to review
charges against police officers. In Islamic law, the nazar fil-mazalim , “investigation of complaints,” was a
prerogative of the caliphs by which they “or, by delegation, ministers or
special officials and later the sultans, heard complaints concerning
miscarriage or denial of justice or other unlawful acts of the kadis, difficulties in securing the
execution of judgements, wrongs committed by government officials or by
powerful individuals …, and similar matters. Very soon formal courts of
complaints were set up.”[4]
In imperial China, the censorate “had as its primary general purpose the
investigating and impeaching of governmental wrongdoing or corruption wherever
uncovered.”[5] While
this approach may limit the ability of ordinary enforcers to abuse their
powers, it raises the obvious risk of abuse by the layer of enforcement above
them.

A variant
on this approach is to use one part of the legal system against other parts as
when, in the U.S., the FBI or state police are occasionally involved in
investigations of corruption by local police. A more decentralized version is
the use of tort law to punish the misuse of the powers of the enforcers of
criminal law. I am told [check this for details] that, whereas modern law
students study what rules police must follow in order that the evidence they
procure will be admissable, the equivalent section in 19th century
textbooks dealt with what police had to do in order not to be subject to civil
suit. And in a number of prominent cases in recent decades, such as the
shooting of Black Panthers Fred Hampton and Mark Clark in Chicago in 1969 and
the Steve Jackson case in Texas in 1990, victims of law enforcement abuse sued
and collected either damages or a settlement.

A
famous 18th century example of the use of tort law to restrain the
enforcers of criminal law was the case of Hinkle
v. Money, one of the earliest punitive damage cases in English law. Issue
45 of The North Britain, an anonymous
anti-government publication, contained an article attacking in strong terms a
royal speech;[6]
the government responded by sending out Kings’ Messengers, roughly the 18th
c. equivalent of Secret Service agents, with a general warrant authorizing them
to arrest any person and seize any papers that they believed were connected
with the publication. They arrested 49 people—and were sued by one of
them, a journeyman printer, on the grounds that holding him prisoner for six
hours while searching his papers on the authority of a warrant that did not
name him was illegal. He won the case and collectedthree hundred pounds from the Secretary
of State.

One
final approach to controlling enforcers is suggested by The Transparent Society, a book on the implications of surveillance
technology by science fiction author David Brin. He argues that technological
development, combined with the usefulness of surveillance for law enforcement,
is in the process of producing a society where everything that happens in any
public place will be recorded and findable, putting enormous potential power
into the hands of law enforcement. To control the abuses that may result, he
further proposes that the transparency run in both directions, that the police
be able to watch the citizens but the citizens equally able to watch the police.

Recent
high profile cases such as the Rodney King case, where law enforcement agents
got into serious trouble as a result of video recording of their misdeeds by
bystanders, suggest that something along the lines he suggested may be
occuring. The technology is new but the underlying theory is not. One very
ancient approach to controlling the misdeeds of government actors is for the
ruler to hold open court at which any of his subjects may approach him to
complain of the acts of his officials.[7]

Both
the old and the new versions suffer from the same limitation. The police can
watch us, we can watch the police, but the police can also arrest and, with the
cooperation of other parts of the law enforcement apparatus, jail or execute
us, and we cannot do the same to them.[8]
Brin’s approach depends on a system of government where it is in the interest
of the ruler to regulate enforcers in the interest of the general population,
and the only limit is in his ability to do so. So does the older version.

H.L.
Mencken, in a satirical discussion of the problem of controlling misdeeds by
government actors,[9]
describes two solutions, one German, one American. The former consisted of a
special court for trying errant officials; it worked because, by Mencken’s
account, “a Prussian
official was trained in ferocity from infancy, and regarded every man arraigned
before him, whether a fellow official or not, guilty ipso facto; in fact, any thought of a prisoners’ possible
innocence was abhorrent to him as a reflection upon the Polizei, and by inference, upon the Throne, the whole monarchical
idea, and God.”

That
approach would never work in America, since “even if they had no other sentiment in common, which
would be rarely, judge and prisoner would often be fellow Democrats or fellow
Republicans, and hence jointly interested in protecting their party against
scandal and its members against the loss of their jobs.” Mencken therefor
proposes an alternative better suited to American conditions: “… any [American citizen], having looked into the acts of a jobholder
and found him delinquent, may punish him instantly and on the spot, and in any
manner that seems appropriate and convenient―and
that, in case this punishment involves physical damage to the jobholder, the
ensuing inquiry by a grand jury or coroner shall confine itself strictly to the
question of whether the jobholder deserved what he got.”

Think of it as a modified version
of the tort law approach—using a decentralized and privately prosecuted
part of the legal system to control the public enforcers.

[1]Oddly
enough, the original context for the phrase is not the political problem of
controlling enforcers but the domestic problem of a husband trying to ensure
the fidelity of his wife.

“the plan that my friends always advise me to adopt:
‘Bolt her in, constrain her!’ But who
can watchthe watchmen?They keep quiet about
the girl's
secrets and get her as their payment; everyone hushes it up.”

For a later version of the same problem, see “The English
Padlock” by Mathew Prior.

[6]A despotic minister will always endeavour to dazzle the
prince with high flown ideas of the prerogative and honour of the crown. I wish
as much any man in the kingdom to see the honour of the crown maintained in a
manner truly becoming Royalty. I lament to see it sunk even to prostitution.

An earlier issue, #5,
had strongly hinted that Lord Bute, prime minister and favorite of the king
(whose tutor he had been) was the lover of the King’s mother.